11.  The applicant was born in 1978. When he lodged his application he was being detained in Rosdorf Prison, Germany. He now lives in Khashuri/Surami, Georgia.
12.  On the evening of 14 October 2006, the applicant and an unidentified accomplice robbed L. and I., two Lithuanian nationals, in the women’s flat in Kassel.
13.  The perpetrators were aware that the flat was used for prostitution and expected its two female occupants to keep valuables and cash there. They had passed by in the early evening in order to make sure that no clients or a procurer were present. Shortly afterwards they returned and overpowered L., who had answered the doorbell. The applicant pointed a gas pistol which resembled a real gun at both women and threatened to shoot them if they did not disclose where their money was kept. While his accomplice watched over the women, the applicant found or forced the women to hand over to him approximately 1,100 euros (EUR) and six mobile phones.
14.  On 3 February 2007 the applicant, acting jointly with several accomplices, robbed O. and P., two female Latvian nationals who were temporarily resident in Germany and working as prostitutes, in their flat in Göttingen.
15.  On the evening of 2 February 2007, the day before the offence, one of the applicant’s co-accused had passed by O.’s and P.’s flat in Göttingen together with an accomplice, R., an acquaintance of O. and P. They intended to verify whether the two women were the flat’s only occupants and whether they kept any valuables there, and discovered a safe in the kitchen.
16.  On 3 February 2007 at around 8 p.m., the applicant and a further accomplice, B., gained access to O.’s and P.’s flat by pretending to be potential clients, while one of their co-accused waited in a car parked close to the building and another waited in front of it. Once inside the flat, B. produced a knife that he had been carrying in his jacket. P., in order to escape from the perpetrators, jumped from the balcony located approximately two metres off the ground and ran away. The applicant jumped down after her but abandoned the chase after some minutes when some passers-by appeared nearby on the street. He then called the co-accused who had been waiting in front of the women’s flat building on his mobile phone and told him that one of the women had jumped from the balcony and that he had unsuccessfully chased her. The applicant agreed on a meeting point with his co-accused where they would pick him up by car once B. had left the crime scene and joined them.
17.  In the meantime, inside the flat, B., having overpowered O., threatened to kill her with his knife if she did not disclose where the women kept their money or if she refused to open the safe for him. Fearing for her life, O. opened the safe, from which B. removed EUR 300, and also handed over the contents of her wallet (EUR 250). B. left the flat at around 8.30 p.m., taking the money and P.’s mobile telephone, as well as the flat’s landline telephone, with him and joined the co‑accused. The co‑accused and B. then picked up the applicant at the agreed meeting point in their car. At approximately 9.30 p.m. P. rejoined O. in their flat.
18.  O. and P. gave an account of the events to their neighbour E. the morning after the offence. They then left their Göttingen flat out of fear and stayed for several days with their friend L., one of the victims of the offence committed in Kassel, to whom they had also described the offence in detail the day after it occurred.
19.  On 12 February 2007 L. informed the police of the offence committed against O. and P. in Göttingen. Between 15 and 18 February 2007 O. and P. were repeatedly questioned by the police as to the events of 2 and 3 February 2007. In those interviews they described the course of events as set out above. The police, having checked O.’s and P.’s papers, found their residence and occupation in Germany to be in compliance with German immigration and trade law.
20.  As the witnesses had explained during their police interviews that they intended to return to Latvia in the days to come, on 19 February 2007 the prosecution asked the investigating judge to question the witnesses in order to obtain a true statement which could be used at the subsequent trial (eine im späteren Hauptverfahren verwertbare wahrheitsgemäße Aussage).
21.  As a result, on 19 February 2007, O. and P. were questioned by an investigating judge and again described the course of events as set out above. At that time, the applicant had not yet been informed of the investigation proceedings initiated against him, so as not to put the investigation at risk. No warrant for his arrest had yet been issued and he was not yet represented by counsel. The investigating judge excluded the applicant from the witness hearing before him in accordance with Article 168c of the Code of Criminal Procedure (see paragraph 56 below) since he was concerned that the witnesses, whom he had found to be considerably shocked and distressed by the offence, would be afraid of telling the truth in the applicant’s presence. The witnesses confirmed at that hearing that they intended to return to Latvia as soon as possible.
22.   O. and P. returned to Latvia shortly after that hearing. The applicant was subsequently arrested on 6 March 2007.
23.  The Göttingen Regional Court summoned O. and P. by registered post to appear at the trial on 24 August 2007. However, both witnesses refused to attend the hearing before the Regional Court, relying on medical certificates dated 9 August 2007 which indicated that they were in an unstable, post-traumatic emotional and psychological state.
24.  Consequently, on 29 August 2007, the Regional Court sent letters by registered post to both witnesses informing them that the court, while not being in a position to compel them to appear at a court hearing in Germany, nonetheless wished to hear them as witnesses at the trial. The court stressed that they would receive protection in Germany and that all costs incurred attending the hearing would be reimbursed and, proposing several options, asked in what circumstances they would be willing to testify at the trial. While an acknowledgement of receipt was returned for both letters, P. did not respond. O., for her part, informed the Regional Court in writing that she was still traumatised by the offence and would therefore neither agree to appear at the trial in person nor to testify by means of an audio-visual link. O. further stated that she had nothing to add to the statements she had made in the course of the interviews carried out by the police and the investigating judge in February 2007.
25.  The Regional Court nevertheless decided to request legal assistance from the Latvian authorities under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, as supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (see paragraphs 64-66 below), taking the view that O. and P. were obliged under Latvian law to appear before a court in Latvia following a request for legal assistance. It asked for the witnesses to be summoned before a court in Latvia and for an audio-visual link to be set up in order for the hearing to be conducted by the presiding judge of the Regional Court (audiovisuelle Vernehmung). It considered, referring to Article 6 § 3 (d) of the Convention, that defence counsel and the accused, just like the judges and the prosecution, should have the right to put questions to the witnesses for the first time.
26.  However, the witness hearing of O. and P. scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before that date by the presiding Latvian judge. The latter found that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorder as a consequence of the offence and that further confrontation with the events in Göttingen would risk aggravating their condition. O. had further claimed that, following threats by the accused, she feared possible acts of revenge.
27.  By a letter dated 21 February 2008, the Regional Court, which had requested and obtained copies of the medical certificates the witnesses had submitted to the Latvian court, informed its Latvian counterpart that, according to the standards of German criminal procedure law, the witnesses had not sufficiently substantiated their refusal to testify. The court suggested to the competent Latvian judge that the witnesses be examined by a public medical officer (Amtsarzt) or, alternatively, that they be compelled to attend the hearing. The letter went unanswered.
28.  By a decision of 21 February 2008, the Regional Court, dismissing an objection to the admission of the witnesses’ pre-trial statements raised by counsel for one of the co-accused, ordered that the records of O.’s and P.’s interviews by the police and the investigating judge be read out at the trial in accordance with Article 251 §§ 1 (2) and 2 (1) of the Code of Criminal Procedure (see paragraph 61 below). It considered that, as required by said provisions, there were insurmountable obstacles which made it impossible to hear the witnesses in the foreseeable future as they were unreachable. It had not been possible to hear O. and P. in the course of the trial since they had returned to their home country, Latvia, shortly after their interviews at the investigation stage, and all attempts to hear their evidence at the main hearing, which the court had no means of enforcing, had been to no avail. Pointing out that the courts were under an obligation to conduct proceedings involving deprivation of liberty expeditiously, and in view of the fact that the accused had already been in custody for a considerable period of time, the court was of the opinion that it was not justified to delay further the proceedings.
29.  The Regional Court emphasised that at the investigation stage there had been no indication that O. and P., who had testified on several occasions before the police and then before the investigating judge, would refuse to repeat their statements at a subsequent trial. It considered that, notwithstanding the resulting restrictions for the defence on account of the admission of O.’s and P.’s pre-trial statements as evidence in the proceedings, the trial as a whole could be conducted fairly and in compliance with the requirements of Article 6 § 3 (d) of the Convention.
30.  By a judgment of 25 April 2008, the Regional Court, considering the facts established as described above, convicted the applicant of two counts of aggravated robbery combined with aggravated extortion involving coercion, committed jointly with other perpetrators in Kassel on 14 October 2006 and in Göttingen on 3 February 2007. It sentenced the applicant, who had been represented by counsel at the trial, to nine years and six months’ imprisonment.
(a)  The assessment of the available evidence concerning the offence in Kassel
31.  The Regional Court based its findings of fact concerning the offence committed by the applicant in Kassel on the statements made at the trial by the victims L. and I., who had identified the applicant without any hesitation. It further noted that their statements were supported by the statements made at the trial by the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigation. In view of these elements, the Regional Court considered that the submissions made by the applicant, who had initially claimed his innocence and had then admitted that he had been in L.’s and I.’s flat but had only secretly stolen EUR 750, alone, after a quarrel with the women, had been refuted.
(b)  The assessment of the available evidence concerning the offence in Göttingen
(i)  O.’s and P.’s statements
32.  In the establishment of the facts concerning the offence in Göttingen, the Regional Court relied in particular on the pre-trial statements made by the victims O. and P., whom it considered to be key witnesses for the prosecution (maßgebliche Belastungszeuginnen), in the course of their police interviews and before the investigating judge.
33.  In its judgment, which ran to some 152 pages, the Regional Court pointed out that it was aware of the reduced evidentiary value of the records of O.’s and P.’s pre-trial testimonies. It further took into account the fact that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses to the offence in Göttingen at any stage of the proceedings.
34.  The Regional Court noted that the records of O.’s and P.’s interviews at the investigation stage showed that they had given detailed and coherent descriptions of the circumstances of the offence. Minor contradictions in their statements could be explained by their concern not to disclose their residence and activities to the authorities and by the psychological strain to which they had been subjected during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why they had not reported the offence immediately after the events and why the police had only been informed on 12 February 2007 by their friend L.
35.  The Regional Court further took note of the fact that O. and P. had failed to identify the applicant when shown several photos of potential suspects during the police interviews. It observed that the witnesses’ attention during the incident had been focused on the other perpetrator carrying the knife and that the applicant himself had only stayed in the flat for a short period of time. Their inability to identify the applicant also showed that, contrary to the defence’s allegation, the witnesses had not testified with a view to incriminating him. The court further considered that the fact that the witnesses had failed to attend the trial could be explained by their unease at having to recall, and being questioned about, the offence and therefore did not as such affect their credibility.
(ii)  Further available evidence
36.  In its establishment of the facts, the Regional Court further had regard to the following additional evidence: the statements made at the trial by several witnesses to whom O. and P. had reported the offence shortly after it happened, namely the victims’ neighbour E. and their friend L., as well as the police officers and the investigating judge who had examined O. and P. at the pre-trial stage; geographical data and information obtained by tapping the applicant’s and his co-accused’s mobile telephones and by means of a satellite-based global positioning system (GPS) receiver in the car of one of the co-accused; the applicant’s admission in the course of the trial that he had been in the victims’ flat at the relevant time; and the similarity in the way in which the offences in Kassel and Göttingen had been committed.
37.  The Regional Court stressed that, once O. and P. had proved to be unavailable, it had ensured that as many as possible of the witnesses who had been in contact with O. and P. in relation to the events in issue were heard at the trial, in order to verify the victims’ credibility.
38.  In the Regional Court’s opinion the fact that the detailed description of the events given in O.’s and P.’s pre-trial statements was consistent with the account they had given the morning after the offence to their neighbour was a strong indication of their credibility and the veracity of their statements. E. had further testified that, on the evening of 3 February 2007 at around 9.30 p.m., another neighbour, an elderly woman who became scared and angry when she saw P. running around in front of her window, had called on her and asked her to accompany her to the women’s flat to investigate what had happened. O. and P. had, however, not answered the door when the neighbours rang the doorbell.
39.  The Regional Court further observed that O.’s and P.’s description of the events was also consistent with their friend L.’s recollection of her conversations with O. and P. after the offence.
40.  In addition, the Regional Court noted that the three police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at the trial that they had found O. and P. to be credible.
41.  The Regional Court stressed that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at the trial or during examination by means of an audio-visual link, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L. it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully.
42.  In this context it had been of relevance that O.’s and P.’s testimonies as well as the statements of the additional witnesses heard at the trial, had been supported by further significant and admissible evidence such as data and information obtained by tapping the applicant’s and the co-accused’s mobile telephones and by means of a GPS receiver. The information in question had been gathered in the context of police surveillance measures carried out at the relevant time in the criminal investigation initiated against the accused on suspicion of racketeering and extortion on the Göttingen drug scene.
43.  It transpired from the geographical data and the recordings of two mobile-telephone conversations between one of the co-accused and the applicant on the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been in the victims’ flat with B., and that he had jumped from the balcony in order to chase one of the escaping victims, whom he had failed to capture, while B. had stayed in the flat. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the time frame in which the robbery in question had occurred.
44.  Furthermore, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity, their own statements at the trial had at least confirmed that one of the co‑accused, together with R., had visited the victims’ flat in Göttingen on the evening before the offence and that they had all been in the car parked close to the victims’ flat at the time of the offence. The accused had initially stated that a different perpetrator and R. had been in the flat at the time of the incident the following day. The applicant had subsequently amended his submissions and claimed that it had been he and B. who had gone into the victims’ flat on 3 February 2007 with a view to making use of the women’s services as prostitutes. He had further conceded that he had followed P. when she escaped over the balcony. He explained that he had done so in order to prevent her from calling the neighbours or the police, since, in view of his criminal record, he had been afraid of getting into trouble and because of the problems he had previously encountered with prostitutes on a similar occasion in Kassel.
45.  Finally, the Regional Court considered that the very similar way in which the offences had been committed against two female victims, foreign nationals working as prostitutes in a flat, was an additional element indicating that the applicant had also participated in the offence committed in Göttingen.
46.  In the Regional Court’s view, the body of evidence, taken together, gave a coherent and complete overall picture of events which supported the version provided by O. and P. and refuted the contradictory versions of events put forward by the applicant and his co-accused in the course of the trial.
47.  On 23 June 2008 the applicant, represented by counsel, lodged an appeal on points of law against the judgment of the Göttingen Regional Court. He complained that he had not been able to examine the only direct and key witnesses to the offence committed in Göttingen at any stage of the proceedings, in breach of Article 6 §§ 1 and 3 (d) of the Convention. As the prosecution authorities, contrary to the case-law of the Federal Court of Justice (the applicant referred to a judgment of 25 July 2000, see paragraphs 58-59 and 62 below), had not requested that defence counsel be appointed for him prior to O.’s and P.’s hearing before the investigating judge, their statements ought to have been excluded from the trial.
48.  In written submissions dated 9 September 2008, the Federal Public Prosecutor General requested that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings, under Article 349 § 2 of the Code of Criminal Procedure (see paragraph 63 below). The Federal Public Prosecutor General argued that, while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (Totalausfall des Fragerechts), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence.
49.  The Federal Public Prosecutor General considered that the Regional Court had assessed the content of the records of the witnesses’ testimonies read out at the trial particularly carefully and critically. Furthermore, the victims’ statements had been neither the sole nor the decisive basis for the applicant’s conviction by the Regional Court, as the latter had based its findings on further significant evidence. In view of the various layers of corroborating evidence, the applicant had had ample opportunity to challenge the credibility of the two prosecution witnesses and to defend himself effectively.
50.  Endorsing the Regional Court’s reasoning, the Federal Public Prosecutor General further pointed out that there was nothing to demonstrate that the restrictions on the defence’s right to examine O. and P. had been imputable to the domestic authorities. The prosecution authorities had not been obliged to appoint counsel for the applicant in order for counsel to participate in the hearing by the investigating judge. In view of the witnesses’ consistent cooperation, the authorities had had no reason to suspect that, despite their return to their home country, they would no longer be available for questioning at the trial, especially as they had been obliged under Latvian law to at least participate in a hearing via video-link.
51.  By a decision of 30 October 2008, the Federal Court of Justice, referring to Article 349 § 2 of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded.
52.  In its decision of 9 December 2008 rejecting the applicant’s complaint concerning a violation of his right to be heard (Anhörungsrüge), the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 § 2 of the Code of Criminal Procedure necessarily entailed a reference to the reasoned application by the Federal Public Prosecutor General.
53.  In a constitutional complaint dated 30 December 2008 against the decisions of the Federal Court of Justice of 30 October and 9 December 2008, the applicant complained, in particular, that there had been a breach of his right to a fair trial and of his defence rights under Article 6 § 3 (d) of the Convention. He argued that neither he nor his counsel had had the opportunity to question O. and P. at any stage of the proceedings.
54.  By a decision of 8 October 2009, the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s complaint (file no. 2 BvR 78/09).